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23d Congress, f 56 1 



2d Session 



IN SENATE OF THE UNITED STATES. 



January 14, 1835. 

The following documents relating to Spanish grants, in Louisiana, between the Perdido and 
Mississippi, were laid on the table, by Mr. Waogamax, (to accompany Senate bill No. 
92,) were ordered to be printed. 

No 1. 
Exposition of the Florida Treaty, by Joseph M. White, Esq. 

The treotyof the 22d of February, 1819, between his Catholic Majesty 
and the United States was intended, as declared in the preamble attached 
to it, ''to consolidate, on a permanent basis, friendship and good corres- 
pondence; and to settle and terminate all their differences and pretensions, 
by a treaty which shall designate, with precision, the limits of their re- 
spective bordering territories in North America." 

One of these " differences," thus proposed to be terminated, was of deep 
interest, long standing, and protracted negotiation, relating to the bounda- 
ries between Louisiana and West Florida. The conflicting " pretension'' of 
each power was to the jurisdiction and dominion of the territory lying be- 
tween the Mississippi and Perdido rivers; and the object of this treaty, as 
recited, was to designate and settle this question of limits. 

The controversy grew out of the extent of the Louisiana cession in 
1803, after that colony was ceded by his Catholic Majesty, in a secret treaty 
of San Ildefonso, dated the 1st of October, ISOO, to the French republic; 
and after the delivery of the province, by the Spanish commissioners Don 
Manuel Salcedo and the Marquis of Casa Calvo to the French prefect 
Lausat, and by him, under the subsequent cession of 1803, with the same 
designated limits, to the United States, the latter set up a claim to all the 
territory east of the Mississippi, as far as the Perdido. This district of 
country was neither delivered by Spain to France, nor by France to the 
United States, as a part of the Louisiana cession. The colony of Louisi- 
ana was quietly considered and accepted by the authorities of all three Go- 
vernments, with the limits designated in the act of delivery, without ex- 
ception, qualification, or protest. Spain remained in possession of West 
Florida, being ail the country east of the Mississippi river, and the island 
of New Orleans, which was neither ceded nor delivered to France by the 
stipulations of the treaty of San Ildefonso, nor by the latter to the United 
States. 

In lg04 the Government of the United States set up a sort of equivocal 
title to the territory in question, in which they had so little confidence, 
that, upon the.first protest of Spain, they so construed their law as to aban- 
don the right to establish a custom house at Mobile. 

In 1805 they created an extraordinary mission to Madrid, to negotiate on 
the subject, which negotiaton resulted in an entire failure. Fran' e and 
Spain both maintained that this territory was no part of the colony of Loui- 
1 



f 



[ 56 ] 



siana. Our negotiators having failed at Aranjuez, in 1S05, to satisfy ei- 
ther Don Pedro Cevallos or his Government, or to convince Prince Tal- 
leyrand, or the First Consul, that there was any justice in their pretension, 
set on foot, in the year 1809, a secret negotiation with the local authorities, 
to induce them to .«nrrender the province of their royal master. This also 
failed, and they then stimulated an insurrection in the ])rovince, and took 
possession of it, avowedly to put do\yn the rebellion, and to hold the terri- 
tory subject to future negotiations. 

A proclamation was issued in 1810, stating in the preamble the confidence 
the Government of the United States had in their title, and that they would 
take possession of the same, with the explicit declaration that '• it will not 
cease to be a subject of fair and friendly negotiation and adjustn.ent." 

The Spanish authorities remained in jjossession ot this territory from 1803 
up to 1810, exercising all tbe rights of jurisdiction and dominion; and granted 
about one out of the ten millions of acres of land. The government, de fac- 
to, during the seven years, is a fact which will not and cannot be questioned. 
Spain, at the time of this proclamation, was desolated by Napoleon's army, 
and his Catholic Majesty in duress. I say nothing of the time selected to 
seize upon this province. It was alleged to be held subject to negotiation, 
but ver}' soon partitioned out. 

Ill all the correspondence between the two Governments, from 1810 to 
1819, Spain solemnly protested against that construction of the Louisiana 
treaty, both at Madrid and at Washington. (See the correspondence annexed 
hereto.) 

The treaty of 1819 terminated the controversy between the two Govern- 
ments, and definitively settled the question of jurisdiction and sovereignty. 
The second article is in these words, upon the English side: "His 
Catholic Majesty cedes to the United States, in full property and sove- 
rei""ntv, all the territories which belong to him, situated to the eastward of 
the Mississippi, known by the name of East and West Florida." The 
Spanish side is more emphatic: " Todos los Territorios que le pertenecen 
sitwados al este del Mississippi, cornocidos bajo el nombre de Florida occi- 
dental y Florida oriental," known under the navie of West Florida', thus 
designating a territory known under the name of West Florida and East 
Florida. It will be observed that this was the cession of territories not 
east of Perdido, but cast of the Mississippi. 

The confirmatory article is coextensive with the article of cession. It 
provides that all claims in " the ceded territories shall remain ratified and 
confirmed." The treaty, it has been sniil, terminated the political question 
between the two nations. The subordinate question arising between the 
individual grantees, under titles made by the legitimate authorities of the 
crown of Spain, between the years 1803 and 1810, whilst Spain remained 
in possession of this territory, is now presented for consideration and 
decision. 

If the United States had recognized these titles, as it is believed was the 
understanding of the contracting parties, A would have prevented the 
development in thes| papers, which for ma<iy reasons should have been 
avoided. These claims have not been adn.itted as yet by the United 
States, and these claimants are obliged to present the question for the legis- 
lative and judicial departments of the Gover ment. 

If the territory lying between the Missis::rnpi and Perdido rivers was in 
fact ceded as a part of the colony of Louisiana, then Sj;ain had no right to 



3 [ 56 3 

grant an}' portion of it subsequent to tlie date of that treat)^ in 1803. If, 
on the other hand, the United States did not acquire the territory until the 
Florida treaty, then Spain had a ri,u;ht to grant the lands herween the years 
1803 and 1810. The United Slates, prior to the conclusion of the treaty 
of 1819, had no other knowledge of the contents of the treaty of San Ilde- 
fonso than that part of it quoted in the Louisiana treaty. The whole of 
that treaty is hereto annexed, and marked A. Taken in conjunclion with 
the other public papers, never before published in this country, marked B, 
it will explain the object of the contending parties. Prior to 1762, the; 
respective rights of Great Britain, Spain, and France were but little under- Jv 
stood, either in Europe or in this country. Each power set up the most J 
exorbitant pretensions to territory, founded upon the uncertain and indefi- 
nite title of discovery. 

It was the object of the treaties of 1762 and '3 to settle their pretensions 
to colonial aggrandizement. In the absence of these papers, vvhich dis- 
tinctly explain the U'vlerstanding of all the parties as to the precise limits 
of Louisiana and West Florida, the United States have endeavored to 
establish some' claim, founded upon this uncertain source of title, to be 
established by reference to vague maps and unauthenticated speculations of 
geographers. 

It is not deemed necessary to go into these questions. It is enough to , 
establish the fact, that in the year 1762 all the territory west of the Missis- \ 
sippi, including the island of New Orleans, was called the colony of Lou- 
isiana: and all the territory east of that river anci the island was caller! West 
Florida. France ceded Louisiana to Spain, and West Florida io i^ngland. 
France, however, remained in possession of Louisiana until 176.9. The 
formal delivery of Louisiana was made on the 21st of April, 1764, but 
Spain could not get possession or exercise jurisdiction until 1769. 

The third article of the treaty of San Ildefonso provides that his 
Catholic Majesty engages to <' recede the colony or province of Louisiana, 
with the same extent it now has in the lands of Spain, and had while in the 
possession of France." What was once Louisiana became two colonies in 
1762, under different names, transferred to diiferent powers. The two 
colonies, by conquest and treaty, again came under the dominion of Spain, 
but they preserved their separate names and separate Governments. 

Louisiana, as it "is now in the hands of Spain," i. e. in ISOO, was not 
as France possessed it prior to 1762. The name and Government of West , 
Florida must. have been extinguished, and the territory reannexed to the i 
colony as it then was. France had possessed this colony from 1762 
to 1764, before Spain signified her acceptance of it, and until 1769, before 
Spaingot quiet possession of it. His Catholic Majesty receded the province 
of Louisiana. It is a perversion of terms to say a recession of a province 
will include another province never ceded by the grantor, but taken by 
conquest, from another power. We have in these papers the clear, unso- 
phisticated understanding of France and Spain. ^It is apparent that Spain 
did not intend, and did not in fact cede to France any portion of territory v 
east of the Mississippi in the year 1300. It is sho\||i that France did not ! 
receive or claim any portion of this territory under that treaty, but subse- 
quent to its date proposed a distinct treaty to acquire it. France could 
only transfer what she had acquired, and no more. 

The ne!.j;otiation of the treaty on the part of France was confided to Mon- 
sieur Bart^ Marlois, who was instructed to consult Prince Talleyrand. The 



C 56 ] 4 

map of Monsieur Marlois shows the extent of the cession, as understood by 
himself and the ministers of the United States. There are numerous maps, 
histories, papers, and documents going to establish this view of the subject. 
It is unnecessary to refer to them. It is too clear for argument. The 
United States never had a legitimate claim to this territory until 1819. 
The question then arises as to the titles to be confirmed within the ceded 
territories. This requires an examination into the principles of interna- 
tional law applicable to the construction of this treaty. I have said that by 
the treaty of the 22d of February, 1819, Spain ceded the Floridas to the 
United States. 

The latter acquired these provinces and their appendages in full sove- 
reignty, including all public grounds and edifices, and all vacant lands which 
were not private property-.* 

It was stipulated between the high contracting parties, that all grants 
made by his Catholic Majesty, or his lawful authorities, before the 24th of 
January, ISIS, in the ceded territory, should remain confirmed and acknow- 
ledged in the same manner as they would have been if the provinces had 
continued imder the dominion of his Catholic Majesty. t Further time was 
given to proprietors who had been prevented from fulfilling the conditions 
of their grants, by the recent circumstancas of the Spanish monarchy, and 
the revolutions in Europe. 

The inhabitants of the ceded territory were protected in all their rights, 
and became citizens of the United States, i 

Congress has, from time to time, adopted various legislative provisions 
for the purpose of preserving the national faith, separating private property 
from the public domain, and securing the individual titles intended to be pro- 
tected by the treaty. 

Commissioners were appointed to examine land claims, with authority to 
confirm grants not exceeding a certain size, and to report those above that 
limit to Congress. When these commissions were dissolved, similar powers 
were vested in the register and receiver of the land offices. In some in- 
stances, an option was given to the holders of certain grants to select a league 
square within their respective concessions, upon condition of surrendering 
the residue by deed to the United States. Through these and other means, 
the titles of the smaller proprietors have, for the most part, been definitively 
adjusted, and the larger claims alone remain for settlement. These, Con- 
gress, by act of 23d May, 1828, authorized the courts of the territory to 
hear and determine, with an appeal to the Supreme Court of the United 
States. Several cases have been adjudicated in the courts below. Deci- 
sions have been pronounced, not easily reconciieable, if not at total variance 
with each other: appeals have been taken, and the questions discussed are 
now before this court, whose judgment is deeply interesting, not merely to 
the parties on the record, but to the numerous other suitors whose rights, 
or supposed rights, depend on similar principles. 

One or two considerations of a general nature may here, it is presumed, 
be not inappropriateir introduced. Those who represent the interests of the 
United States in some of the cases before the court have thought proper to 
assume, as one ground of defence, that the confirmation or rejection of these 
titles is matter essentially of executive or legislative cognizance, and ad- 

♦ Article 2d. t^rticle 8th. J Articles 5th and Cth. 



5 [ 56 ] 

dresses itself exclusively to their discretion. The question they urge is a 
political, not a judicial one, and is equally unfit to be submitted to, and inca- 
pable of being (iecided by, a court. Waiving all considerations of the hard- 
ship and mockery of referring claimants under a treaty to a tribunal incom- 
petent to afford them redress, forbearing to touch on the indecorum of a 
construction which attributes to Congress an act of futile or deceptive legis- 
lation, it will be enough to say that this interpretation, it is believed, has 
been once considered and rejected.* 

The argument, indeed, amounts to little more than this — we have bound 
ourselves to do what Spain would have done, what that is, we know not; 
and having referred the question to those who cannot decide it, we will 
therefore do nothing. Perfidy often wears the mask of subtlety, as well 
from shame as cowardice; but it is seldom that the counsellors of bad faith, 
if they condescend to argue at all, are satisfied with a defence so feeble. 

The act of Congress requires the court to examine and decide upon these 
claims in conformity with the law of nations, the treaty, and the laws of Spain. 

It is proposed to consider the subject in reference to each of these several 
rules of decision. 

First, The law of nations. 

It is conceived that, according to the mitigated rights of war, as now well 
understood and settled by international law, the lands of individuals are 
safe even after conquest:! much less can a cession, of itself, destroy private 
rights. Absolute or perfect grants, it is believed, would be protected by 
the law of nations, independent of the treaty. Some legislative recogni- 
tion of their validity might indeed be necessary to sustain a suit upon them 
in our courts, but the national obligation to respect them could hardly be 
denied. It is in behalf of concessions or inchoate grants that the stipulations 
of the treaty were most requisite and important. To the acts of the Spanish 
government in this respect, not merely the authority of res adjudicalay 
such as belongs to all foreign sentences and decrees, was given by the treaty; 
its effect was to make binding on us all that would have been valid against 
Spain, and to oblige us to complete whatever she, in good faith, had begun, 
but left unfinished. 

A detailed examination of the maxims of customary international law, as 
they would bear upon the rights of proprietors of land in Florida, is not call- 
ed for in the presence of an express treaty stipulation; and, in referring to 
the law of nations as a rule of decision for the courts, Congress, perhaps, had 
more expressly in view such part of it as relates to the interpretation of trea- 
ties. This will be more conveniently considered under another head. 

Secondly. The treaty. 

This instrument, it is contended, should be most liberally construed. Its 
interpretation is to be sought in the motives and policy of the parties: in 
their words and in their acts. The leading objects of the United States 
were, to procure a more convenient and secure frontier; to command the 
Gulf of Mexico, the outlet of a large portion of their commerce; to obtain 
indemnity for their merchants, and to secure themselves against the annoy- 
ance they must naturally expect from Florida, in the hands of an enemy or 
a false or feeble neutral. It is notorious that, for more than a century, this 
territory had been a constant source of injury, jealousy, and vexation to the 
adjoining colonies and States. The colony of Georgia was founded as a bar- 

♦Soulard'scase, 4 Peters. tVattel, b. III. c. 13, sec. 200. 



L 56 ] 6 

rier against the encroachments of the Spaniards; and the refuge and encou- 
I'ngement afforded by the latter to absconding slaves, hostile Indians, and 
other incendiaries, was a continued cause of complaint, from the settlement 
oi' Carolina to the Seminole campaign. In examining the interests and duties 
of the United States in connexion with this subject, it is not as landed pro- 
prietors alone that we must regard them. The rage for new settlements, 
indeed, makes this the chief point anjong the people, and greatly increases 
the prejudices against the large grants; but the court is far above the conta- 
gion of their example. 

To consider the cession of Florida merely as a land-jobbing transaction, 
would be doing great injustice to the liberal and enlightened policy which 
sought this valuable acquisition, with steady calmness, through so long a 
course of evasion and delay. Yet its value, even in that point of view, is 
not unvvorth}' of notice. Thirty-five millions and a half of acres, of which, 
up to the 30th of June, 1S28, but little more than a million and a half had 
been granted or sold,** will surely, after making a most liberal allowance 
for the satisfaction of unsettled land claims, more than refund to us the five 
millions paid to our own merchants. Computing but thirty millions at the 
minimum price to which it is proj)osed to reduce the refuse lands, the 
United States will receive back their principal from the soil, and obtain the 
sovereignty for notiiing. 

It is admitted that, in the cession of a province, the disposition of the in- 
habitants and their eflecls is a question of policy between the parties. To 
divest them of their rights of property is, however, in modern times, an 
unheard of cruelty. Usually the option is allowed them of becoming sub- 
jects of the nevv Government, or of selling their estates, and removing 
within a specified period. Such were the terms of cession of this very pro- 
vince from Spain to Biitain in 1763, and from Britain to Spain twenty 
years afterwards. It will be borne in mind by the court that population ra- 
ther than soil is the want of the United States; that their policy as to natu- 
ralization is as liberal as that which the wisest modern philosopher has 
praised in the greatest of liie aucieni lepublics; and that sovereignty, not 
soil, was tlie great motive for the acquisition. 

Our Government, it may safely be alFirmed, neither contemplated the ex- 
pulsion of the ancient inhabitants, or any injury to their property. The 
terms held out in the treaty ceding Louisiana, as well as thai by which Flo- 
rida was acquired, shovv that the United States never intended to grasp a 
barren sceptre, aiul wave it over a dispeopled territory. The inhabitants 
were made citizens. The province was to become a Stale. Can it be ima- 
gined that any rational Government would act so unwisely as to receive into 
their society a large body of foreigners, endow them with civil rights and 
political power, and, after rendering them disaffected, by stripping them of 
their property, leave to these malcontents the protection of an extensive, 
important, and exposed frontier? 

Many of the motives which must have operated on Spain are equally ob- 
vious. She naturally wished to extinguish demands, ihe justice of which 
had been admitted, while their satisfaction had been evaded until all the arts 
of procrastmation were exhausted. She might desire to get rid of a useless 
and expensive appendage; and she must have foreseen tiiat it would pro- 
bably be wrested from her as an indemnity, if she trifled much longer with 

* Reports of Committees, H. R. No. 95, 2d session, 20th Congress. 



7 C 56 ] 

our patience. But, in yielding up the inhabitants with the territory, she 
would naturally stipulate most favorably lor the people she was about to 
surrender. She did not intend to sacrifice them. Their fidelity to her in 
every vicissitude, the temptations by which they had been assailed, the in- 
vasions to which they had been exposed, their sufferings, their constancy, 
their very helplessness, all pleaded powerfully in their favor. 

In the 8lh article, two parties were stipulating for the security and advan- 
tage of a third, whom both had the strongest reasons to cherish and protect. 
It is submitted, therefore, with some degree of confidence, that, so far as 
the motives and policy of the parties afford a key to the meaning of their 
words, the construction most favorable to the claimants is permitted to, nay, 
is enjoined upon the court. 

Before proceeding to examine the language of the treaty, a few observa- 
tions on the rules of interpretation may, perhaps, be pardoned. Jurists 
generally admit that all grants, contracts, and stipulations, are to be taken 
most strongly against the grantor.* The words of the party promising are 
to be regarded rather than those of the party to whom the promise is made.t 
Other general rules are to be found in the works of the most esteemed pub- 
licists, and must be familiar to the court. if Among the rest, that interpre- 
tation which is drawn from the reason of the act is strongly and safely re- 
commended. II A special rule of construction has, moreover, been deduced 
from the character of the stipulation itself. Hence the distinction between 
things favorable and things odious — a distinction recognised by Grotius and 
Vattel.§ The difference between the former and mere acts of liberality 
prejudicial to the sovereign, is illustrated by the last named authorH in such 
a manner as leaves no doubt to which class the provisions of the eighth ar- 
ticle belong. 

What, indeed, can be more clearly entitled to rank among things favora- 
ble, than engagements between nations securing the private property of faith- 
ful subjects, honestly acquired under a Government which is on the eve of 
relinquishing their allegiance, and confided to the pledged protection of that 
country which is about to receive them as citizens.'' 

This brings us to the words of the treaty. There is a difference between 
the English and the Spanish versions of the eighth article. Both are equally 
originals, but surely the justice and liberality of the United States will 
extend to the claimants the full benefit of either. The first difference is in 
Tendenu^^ ^^ concesiones de ierrenos" as << grants of land." ConcesioneSy 
it is apprehended, is a term much broader than grants, and comprehends 
all which we, in the technical language of our land laws, might call entries 
or warrants of survey or location. Tne substitution of lawful, in the Eng- 
]ish, for legitimos, in the Spanish, will be commented on in another place. 
The residue of the clause, that those grants shall be ratified and confirmed 
to the persons in possession of the lands, to the same extent that the same 
grants would be valid, &c., is by no means equivalent to the Spanish phra- 
seology. The latter, fairly rendered, is to this effect: " All concessions of 

* Cooper's Justinian, in note 601. 

f Vattel, b. II, c. 17, sec. 267. 

4 Grotius, b. II, ch. 16, p. 136. Vattel, b. II, c. 17, sec. 270. 

I Vattel, b. II, c. 17, sec. 287. 

§ Grotius, b. II, c. 16, sec. 10, p. 14S. Vattel, b. II, c. 17, sec. 300, 301, 303. 

i Vattel, b. II, c. 17, sec. 310. 



C 56 ] 8 

lands made by his Catholic Majesty, or by his legitimate authorities, before 
the 24th January, 1818, in the aforesaid territories, whicli his Majesty cedes 
to the United States, shall remain confirmed and acknowledged to the per- 
sons in possession of ihem, (i. e. the concessions,) in the same manner that 
they would have been if the dominion of his Catholic Majesty over these 
territories had continued." 

The difference between declaring that these ^ron/^ shall be ratified and 
cov firmed to the persons in possession of the lands, to the same extent 
that \.he same grants would have been valid, &c., and saying that all co7i- 
cessions of land shall remain covjirmed and acknotvledged to the persons 
in possession of them (i. e. the title papers) in the same manner that they 
would have been, &c., is sufficiently obvious and important. The sense is 
materially different. The English side of the treaty leaves the ratification 
of the grants executory — they shall be ratified; the Spanish, executed — 
they shall continue acknowledged and confirmed, quedaran ratificados, 
Quedan signifies remain or continue, and in this sense is used in the last 
clause of the same article; quedan anuladas y de ningun valor, remain 
null and of no effect. In the English, possession refers to the lands; in the 
Spanish, to i\\Q grants. The relative ellas agrees with the antecedent con- 
cesiones; if it referred to terrenes, the relative would have been ellos. No 
word equivalent to recent is to be found in the Spanish. 

It has been supposed, with little reason, that the eighth article might be 
interpreted to confer a discretion, rather than impose an obligation, on the 
American Government. It is one of the admitted rules of construction, 
that interpretations which lead to an absurdity, .or render an act null, are to 
be avoided.* 

The King of Spain can annul a grant made by himself without any allega- 
tion of surprise or fraud, simply in virtue of his absolute will and sovereign 
power. It is too late for us to deny that position; we have recognised it by 
the treaty. The grants to Alagon, Vargas, and Pufion Rostro were annul- 
led. By the treaty we succeeded to all the rights of Spain; the concessions 
made by Spain are to continue valid to the same extent, &c.; but will it be 
asserted that, in succeeding to the rights of Spain, we succeed to the 
right of his Catholic Majesty to annul the grants of his subjects? Can it be 
pretended that the provisions of the eighth article were designed only to 
leave all grants, perfect and inchoate, as completely at the mercy of the 
American Government as they had been at that of the Spanish monarch? 

In attempting to ascertain the true meaning of the parties, it is humbly 
conceived we are not confined to the language of the treaty. We may look 
into the negotiations which preceded it. In this instance, there is a particu- 
lar propriety in doing so. " As the instrument of ratification, an essentia! 
part of the whole treaty refers to the history of the negotiation; it lets in the 
whole of that history, as matter to be adverted to, according to all the strict- 
ness of legal argument in reasoning on the construction of the claim in 
question. The matter is thus made capable of being argued as if the ques- 
tion were uj)on an act of parliament, or private deed, reciting the circum- 
stances under which it was obtained. One might, therefore, rest, as eluci- 
dating the case, upon all the authorities which establish, with respect lo 
private and diplomatic instruments, that, however general and comprehen- 
sive particular expressions may be, they ought in their effect to be confined 

♦Vattel, b. II, c. 17, sec. 282, 304. , 



9 [ 56 ] 

to the particular object the parties had in view. The reports of the Court 
of Chancery in Enj^land contain a variety of instances as to the restriction of 
deeds, however widely expressed, to the particular object of the parties, 
founded on a review of the circumstances under which they were made. 
(Vide Chalmondly and Clinton.) It is also observed by Vattel (268) that 
we are to interpret a clause in the utmost latitude that the strict and appro- 
priate meaning of the words will admit of, if it appears that the author had 
in view every thing which that strict and appropriate meaning comprehends; 
but we must interpret it in a more liberal sense when it appears probable 
that the author did not mean it to extend to every ^thing which the strict 
propriety of the terms might be made to include."* 

A short sketch of the negotiations, with some brief extracts and references, 
will therefore be submitted. In January, 1818, the Government of the 
United States proposed to the Chevalier de Onis to terminate all differences 
on the following terms: 

1. Spain to cede all territory eastward of the Mississippi. 

2. The eastern boundary to be the Colorado. 

3. Claims for indemnities to be referred to commissioners. 

4. The lands in East Florida, and to the Perdido, to be held as security 
for the indemnities; but no gram subsequent to August 11, 1802, to be con- 
sidered valid. 

5. Spain to be released from the payment of the debts.t 

On the 24th October, 1818, Don Luis de Onis proposes to cede the Flori- 
das: *' the donations or sales of land made by the Government of his majes- 
ty, or by legal authorities, until this time, are nevertheless to be valid. "J 

The Secretary of State replies, October 31, 1818, "Neither can the Uni- 
ted States recognise as valid all the grants of land until this time, and at the 
same time renounce all their claims for indemnity." He adverts to the 
notice given to the Government of Spain, that all the grants lately made 
within those territories (i, e. to Alagon, Vargas, &c.) must be cancelled, un- 
less some other adequate fund should be provided to satisfy the claims of the 
United States and their citizens. § 

De Onis rejoins^ lOih November, 1818, "My second proposal has beea 
admitted by your Government with this modification, that all grants and 
sales of land made by his Catholic Majesty, or by lawful Spanish authorities, 
in the Floridas, from the year 1802 to the present, shall be null and void. 
To this modification, in its absolute sense, I cannot consent, inasmuch as it 
is offensive to the dignity and imprescriptible rights of the crown of Spain, 
which, as the legitimate owner of both the Floridas, had a right to dispose 
of those lands as it pleased; and, further, as the said modification would be 
productive of incalculable injury to the bona fide possessors, who have ac- 
quired, settled, and improved those tracts of land." ■ s| 

" The extent of what I can agree to is, that the late grants made by his 
Catholic Majesty in the Floridas, since the 24th of January last, the date of 
my first note, announcing his majesty's willingness to cede them to the 
United States (the said grants having been made with a view to promote 
population, cultivation, and industry, and not with that of alienating them,) 

♦ MSS. Opinion of Sir John Joseph Dillen, on Rattenbury's grant, 
f Lyman's Diplomacy United States; vol. 2; p. 133. 
+ 1vol. Executive Papers; 1 sess. 16 Cong. 1819-'20; doc. 2; p. 25. 
§ 1 vol. Executive Papers; 1 sess. 16 Cong. 1819-'20; doc. 2; p. 25. 
2 



[ 56 J 10 

shall be declared null and void, in consideration of the grantees not having 
complied with the essential condition of the cession, as has been the fact."* 

On the 9th of February, 1819, the Minister of Spain submitted his pro- 
ject of a treaty. The ninth article, answering the eighth of the present 
treaty, is as follows: 

" All grants of land made by his Catholic Majesty, or his legitimate au- 
thorities, in the aforesaid territories of the two Floridas, and others, which 
his majesty cedes to the United States, shall be confirmed and acknow- 
ledged as valid, excepting those grants which may have been made after the 
24th of January last year, the date that the first proposals were made for the 
cession of those provinces, which shall be held null, in consideration of the 
grantees not having complied with the condition of the cession. "t 

On the 13th of February, 1819, the American Secretary offered his 
counter project, in which the eighth article proposed stands thus: 

" All grants of land made by or in the name of his Catholic Majesty in the 
aforesaid territories, after the 24th of January, 1818, shall be held null, the 
conditions of the said grants not having been performed by the grantees. 
All grants made before that date by his Catholic Majesty, or by his legiti- 
mate authorities in the said territories, the conditions of which shall have 
been performed by the grantees according to the tenor of their respective 
grants, and none other, shall be confirmed, and acknowledged as valid. "J 

In the minute or protocol of conferences preserved by M. Hyde de Neu- 
ville, whose good offices were interposed on this occasion, the following 
entry will be found: 

*' Article eighth. The article cannot be varied from what is contained 
in the Chevalier's project, as the object of the last clause therein is merely 
to save the honor and dignity of the sovereignty of his Catholic Majesty. 

" Note of Mr. Jidams thereon. Agreed, with the following explanation; 
that all grants of land which shall not be annulled by this convention are 
valid to the same extent as they are binding on his Catholic Majesty. 

*' Remarks of M. De Neuville, The Secretary of State observed to me, 
that the Federal Government would, most assuredly, never entertain the 
idea of disturbing individuals who were vested with a bona fide title to 
their property; but, as a trenty ought not to cover fraudulent practices, so 
no more could be asked of the United States than could be offered by his 
Catholic Majesty; that, being in this case substituted for his majesty, they 
would scrupulously fulfil their engagements, but that more could not be ex- 
pected of them. 

" The Secretary of State even proposes, if M. De Onis wishes it, that the 
article shall be inserted in the treaty as proposed by the Minister of Spain, 
on condition that the above explanation shall be given in the form of a note. 
The Federal Government, unwilling to leave any thing in a state of doubt 
or uncertainty, only wish to place on the most secure footing whatever is 
just and honorable, and is at the same time perfectly satisfied that his Catho- 
lic majesty neither asks nor wishes more."§ 

The eighth article was finally ii-iserted as it at present stands, but doubts 
arising whether the recent large grants were effectually excluded by the 

♦ 1 vol. Ex. Papers, 1 sess, 16 Cong. 1819, 1820, doc. 2. p. 25. 
j- I vol. Ex. Papers, 1 sess. 16 Conjj. doc. 2, p. 37. 
\ 1 vol. Ex. Papers, 1 sess. 16 Cong. doc. 2, p. 43. 
§ 1 vol. Ex. Papers, 1 sess. 16 Cong. doc. 2. p. 48. 



11 [ 56 ] 

words of the treaty, Mr. Adams writes to the Chevaher De Onis on the 
]Oth March, 181S, that it was distinctly understood that the grcnts to Ala- 
gon, Varga?, and Pufion Roslro, were all annulled by the treaty, as much 
as if they had been specifically named, and that they will be so hehi by the 
United States.* 

Mr. Adams, on the 14th July, 1819, submits to M. De Neuville the fol- 
lowing observations on the eighth article: <'M.De Neuville's particular 
attention is requested to the difference between the two projected articles, 
because it will recall particularly to his remembrance the point upon which 
the discussion con orning this article turned. By turning to the written 
memorandum, drawn up by M. De Neuville himself, of this discussion, he 
will perceive he has noted that M. De Onis insisted that this article could 
not be varied t'rom what was contained in the Chevalier's project, as the 
object of the last clause therein was merely to save the honor and dignity 
of the sovereignty of his Catholic Majesty." 

It was then observed by Mr. Adams, that the honor and dignity of his 
Catholic Majesty would be saved by recognising the grants prior tor the 24th 
of January, as " valid to the same extent as they were binding on his Catho- 
lic Majesty;" and he agreed to accept the article as drawn by M. De Onis, 
with this explanation. (SeeM. De Neuville's memorandum, j It was on this 
occasion that M. De Neuville observed, that, if the grants prior to January 
24, 1818, were confirmed only to the same extent that they were binding on 
the King of Spain, there were many bona fide grantees of longstanding, in 
actual possession of their grants, and having actually made partial settle- 
ments upon them, but who had been prevented by the extraordinary circum- 
stances in which Spain had been situated, and the revolutions in Europe, 
from fulfilling all tlie conditions of their grants; that it would be very harsh 
to leave these persons liable to a forfeiture, which might indeed, in rigor, be 
exacted from them, but which very certainly never would be if they had 
remained under the Spanish dominion. It will be remembered by M. De 
Neuville how earnestly he insisted upon this equitable suggestion, and how 
strongly he disclaimed for M. De Onis every wish or intention to cover, by 
a provision for such persons, any fraudulent grants. And it was then ob- 
served l)y M. De Neuville, that the date assumed, of 24th of January, 1818, 
was not sufficient for guarding against fraudulent grants, because they might 
be easily antedated. It was with reference to these suggestions of M. De 
Neuville, afterwards again strenuously urged by M. De Onis, that the article 
was finally modified as it now stands in the treaty, declaring all grants sub- 
sequent to 24th January, 1818, absolutely null, and those of prior date valid 
to the same extent only that they would have been binding on the king, but 
allowing to bona fide grantees in actual possession, and having commenced 
settlements, but who had been prevented by the late circumstances of the 
Spanish nation and the revolutions in Europe, from fulfilling all the condi- 
tions of their grants, time to complete them. It is needless to observe, that, 
as these incidents do not apply to either of the grants to Alagon, Puiioii 
Rostro, or Vargas, neither of these grants is confirmed by the tenor of the 
article as it stands; and that it is perfectly immaterial, in that respect, 
whether they were dated before or after the 24th of January, 1818, it being 
admitted on all sides that these grants were not binding upon the king, 
conformably to the Spanish laws. The terms of the article accord precisely 

• 1 vol. Ex. Papers, 1 sess. 16 Cong. doc. 2, p. 63. 



Z 56 2 12 

with the intentions of all the parties to the negotiation and the signature of 
the treaty. If the dates of the grants are subsequent to the 24th of January, 
1818, they are annulled by the date; if prior to that date, they are null, 
because not included among the prior grants confirmed."* 

From all these documents the clear inference is, that the great subject of 
anxiety with our negotiator was the large grants to Alagon, Vargas, and Pu- 
iion Rostro. It was against them almost alone that the article was directed. 
The American Government, indeed, at one time, proposed to carry the date 
back to 1802, by which means they would have excluded the claims of 
Forbes, Arredondo, and others, with whose existence there is every reason 
to believe they were perfectly well acquainted. But this pretension was 
speedily abandoned. If there appeared a distinct declaration on the part of 
the American Government that the sole object of the Sth article was to ex- 
clude the grants to Alagon, Punon Rostro, and Vargas, such declaration, it 
is apprehended, would be conclusive. It could no longer be deemed just or 
honorable to apply the question ordinary and extraordinary to other grants 
dated before the 24th January, 1818, with a view of extorting from them by 
legal subtlety something which should debar their proprietors the benefits of 
that very article which was framed solely to admit them, and to exclude 
others. Yet it is respectfully submitted that no express admission of the 
fact could be stronger than the implication arising from this correspondence. 
If, however, an explicit avowal on the part of our Government will alone 
be received, we refer to the message of the President to Congress, in which 
he tells that body ''it was the intention of the parties to annul these latter 
grants, and that clause was drawn for that express purpose, and none 
other."! 

May we not ask whether this is the sole purpose to which it is now sought 
to be applied, and how far is it consistent with justice and good faith to ex- 
tend the effect of the clause in question beyond what either of the parties 
contemplated at the time of its adoption? 

The application of the common law principle, that a grant may be abso- 
lutely void where the officer issuing it had no authority, is insisted on; and 
it is asserted that the royal governors of the Spanish colonies had no power 
to make sales or donations of the public lands, except in very limited quan- 
tities, and under numerous restrictions. An inquiry into the truth of this 
assertion will be attempted, according to the limited means within our power; 
and the more readily because of the intimations thrown out by this court in 
the cases of Soulard and Smith.! 

Every fair presumption is against these supposed limitations. Legal or 
constitutional restrictions upon the power of the king or his officers, accord- 
ing to our ideas of them, are inconsistent with the character of the Spanish 
monarchy. They are hardly comprehensible I)y a native of that country, 
and have been rejected, together with the constitutional monarchy, by the 
people of Spain. How is it possible to reconcile limitations of power with 
the fundamental maxim, "the will of the prince has the force of a law?" 

Portions of the royal authority, as arbitrary as that of the king himself, 
were entrusted to the several governors of provinces, each of whom, within 
the limits of his own government, was the image of his sovereign, and, in 

* Ex. Papers, 1 sess, 16 Cong. pp. 6S, 69. 

t 1 vol. Ex. Papers, 1 sess. 16 Cong-. 18 19 -'20, doc. 2, p. 5. 

\ 4 Peters' Reports, 



13 C 56 ] 

practice at least, and in popular opinion also, absolute. The only restraints 
upon his acts were his instructions and accountability to the king; but the 
royal instructions, and the residentia, or account of his transactions, which 
the governor was obliged to give, were not properly legal limitations upon 
his power, but rather directions for the exercise of his discretion, and se- 
curities for his good behavior. 

Every nation has its own manner of securing the fidelity of its agents. 
Free Governments are constructed upon the principle of entrusting as little 
power as possible, and providing against its abuse preventively, by all spe- 
cies of checks and limitations. Arbitrary ones proceed upon the principle of 
bestowing ample powers and extensive discretion, and guarding against their 
abuse by prompt and strict accountability and severe ])unishment. Both 
have been invented by mankind for purposes of mutual defence and com- 
mon justice, but the pervading spirit of the one is preventive, of the 
other vindicatory. 

How absurd would it be, then, to apply the maxims of the one govern- 
ment to the acts of the other. As well might we judge the life of Pytha- 
goras by the law of the New Testament, or the philosophy of Zoroaster by 
that of Newton, as subject the administration of a Spanish governor to the 
test of magna charta, the bill of rights, the habeas corpus act, or the princi- 
ples of American constitutional law. 

Even the laws of the Indies, obscure, perplexed, and sometimes even un- 
intelligible as they are, hardly reached across the ocean, and the decline of 
the Spanish, like that of the Roman empire, was marked by the obsoleiism 
of the distant prefects. 

Nor were the offices of captain general, intendant, or sub-delegate, sine- 
cures. Entrusted with the command and defence of remote and exposed 
possessions — often reduced to the greatest extremities for the want of mo- 
ney and supplies — neglected by the feeble government of the mother coun- 
try — they were yet expected to guard the colony, and execute the most ri- 
gorous system of monopoly, amid greedy neighbors and an impoverished 
people. They were frequently obliged to create their own resources; and 
some idea of their difficulties, and the devotion and address which surmount- 
ed them, may be formed by remembering how long the able but cruel 
Morilla protracted a desperate warfare, amid every species of distress and 
destitution. 

Their first duty was to preserve his Catholic Majesty's province, commit- 
ted to their care; and if the}' did it, and could only do it by some invasions 
of the fisc, or dilapidations of the r /yal domain, does it lie with us to com- 
plain of their fidelity to him, and vitiate those titles which were devised 
from a law above all other — necessity?* 



Extract from an opinion of Chief Justice Marshall, in Percheman's 

case. — 7 Peters' Rep. 
"Florida was a colony of Spain, the acquisition of which, by the United 
States, was extremely desirable. It was ceded by a treaty concluded be- 
tween the two powers at Washington on the 22d day of February, 1819. 

* Vide White's Land Laws, 235, 7 vol. Ex. Doc. p. 2, 1824-'5. Also, MSS. Extracts from 
Col. McKee's correspondence. See, also, the letter of Gov. Chester to the Earl of Dart- 
mouth— MSS. Letter-book, West Florida, 18th Nov. 1775, p. 34. 



[ 56 ] . 14 

The 2d article contains the cession, and enumerates i(s objects. The Sth 
contains stipulations respecting the titles to lands in the ceded territory. 

It may not be unworthy of remark, that it is very unusual, even in cases 
of conquest, for the conqueror to do more than to displace the sovereign, 
and assume dominion over the countr}'^. The modern usage of nations, 
which has become law, would be violated; that sense of justice and of right 
which is acknowledged and felt by the whole civilized world would be 
outraged, if private property should be generally confiscated, and private 
rights annulled. The people change their allegiance, their relation to their 
ancient sovereign is dissolved, but their relations to each other, and their 
rights of property, remain undisturbed. If this be the modern rule even in 
cases of conquest, who can doubt its application to the case of an amicable 
cession of territor}- ? Had Florida changed its sovereign by an act contain- 
ing no stipulation respecting the property of individuals, the right of pro- 
perty in all those who became subjects or citizens of the new government 
would have been unaffected by the change. It would have remained the 
same as under the ancient sovereign. The language of the 2d article con- 
forms to this general principle: — '*His Catholic Majesty cedes to the United 
States, in full property and sovereignty, all the territories which belong to 
him, situated to the eastward of the Mississippi, by the name of East and 
West Florida." A cession of territory is never understood to be a cession 
of the property belonging to its inhabitants. The king cedes that only 
which belonged to him. Lands he had previously granted were not his to 
cede. Neither party could so understand the cession. Neither party could 
consider itself as attempting a vv^rong to individuals condemned by the prac- 
tice of the whole civilized world. The cession of a territory by its name, 
from one sovereign to another, conveying the compound idea of surrender- 
ing, at the same time, the lands and the people who inhabit them, would be 
necessarily understood to pass the sovereignty only, and not to interfere 
with private property. If this could be doubted, the doubt would be re- 
moved by the particular enumeration v/hich follows: — "The adjacent islands 
dependent on said provinces, all public lots and squares, vacant lands, pub- 
lic edifices, fortifications, barracks, and other buildings which are not pri- 
vate property, archives and documents which relate directly tc the property 
and sovereignty of the said provinces, are included in this article." 

This special enumeration could not have been made, had the firt;t clause 
of the article been supposed to pass, not only the objects thus enumerated, 
but private property also. The grant of buildings could not have been 
limited by the words "which are not private property," had private pro- 
perty been included in the cession of the territory. 

This state of things ought to be kept in view when we construe the Sth 
article of the treaty, and the acts which have been passed by Congress for 
the ascertainment and adjustment of titles acquired under the Spanish Go- 
vernment. That article, in the English part of it, is in these words: " All 
the grants of land mr ^•! before the 24th January, 1818, by his Catholic 
Majesty, or by his lav Tal authorities in the said territories, ceded by his 
Majesty to the United Sates, shall be ratified and confirmed to the persons 
in possession of the lands, to the Parae extent that the same grants would be 
valid if the teritories had remained under the dom.inion of his Catholic 
Majesty." 

This article is apparentl)^ introduced on the part of Spain, and must be 
intended to stipulate expressly for that security to private property which 



15 [■ 56 J 

the laws and usages of nations would, without express stipulation, have con- 
ferred. No construction which would impair that security further than its 
positive words require, would feeem to be admissible. Without it, the titles 
of individuals would remain as valid under the new government as they 
were under the old, and those titles, so far at least as they were consumma- 
ted, might be asserted in the courts of the United States, independently of 
this article. 

The treaty was drawn up in the Spanish as well as in the English lan- 
guage. Both are originals, and "were unquestionably intended by the par- 
ties to be identical. The Spanish has been translated, and we now under- 
stand that the article, as expressed in thatlanguage, is, that the grants "shall 
remain ratified and confirmed to the persons in possession of them to the 
same extent," &c. ; thus conforming exactly to the universally received 
doctrine of the law of nations. If the English and the Spanish parts can, 
without violence, be made to agree, that construction which establishes 
this conformity ought to prevail. If, as we think must be admitted, the 
security of private property was intended by the parties, if this security 
would have been complete without the article, the United States could have 
no motive for insisting on the interposition of Government, in order to give 
validity to titles which, according to the usages of the civilized world, 
were already valid. No violence is done to the language of the treaty by a 
construction which conforms the English and Spanish to each other: al- 
though the words "shall be ratified and confirmed," are properly the words 
of contract stipulating for some future legislative act, they are not necessa- 
rily so. They may import that they "shall be ratified and confirmed" by 
force of the instrument itself. When we observe that in the counterpart of 
the same treaty, executed at the same time by the same parties, they are 
used in this sense, we think the construction proper, if not unavoidable. 

In the case of Foster vs. Elam, 2 Pet. 253, this court considered these 
words as importing contracts. The Spanish part of the treaty was not then 
brought to our view, and we then supposed that there was no variance be- 
tween them. We did not suppose that there was even a formal diflerence 
of expression in the same instrument, drawn up in the language of each 
party. Had this circumstance been known, we believe it would have pro- 
duced the construction which we now give to the article. 

This understanding of the article must enter into our construction of the 
acts of Congress on tlie subject. 

The United States had acquired a territory containing near thirty mil- 
lions of acres, of v/hich about three millions had probably been granted to 
individuals. The demands of the Treasury, and the settlement of the terri- 
tory, required that the vacant lands should be brought into the market, for 
which purpose the operations of the land oflice were to be extended into 
Florida. The necessity of distinguishing the vacant from the appropriated 
lands was obvious, and this could be effected only by adopting means to 
search out and ascertain pre-existing titles. This seems to have been the 
object of the first legislation of Congress. 

On the 8th of May, 1822, an act was passed " for ascertaining claims and 
titles to land within the Territory of P^lorida." 

The first section directs the appointment of commissioners, ybr the pur- 
pose of ascertaining ihe claims and titles to lands within the Territory of 
Florida, as acquired by the treaty of the 22d of February, 1819. 



[ 56 ] 16 

It would seem from the title of the act, and from this declaratory section, 
that the object for which these commissioners were appointed was the as- 
certainment of these claims and titles. That they constituted a board of 
inquiry, not a court exercising judicial power, and deciding finally on titles. 
By the act "for the establishment of a Territorial Government in Florida," 
previously passed at the same session, superior courts had been established 
in East and West Florida, whose jurisdiction extended to the trial of civil 
causes between individuals. These commissioners seem to have been ap- 
pointed for the special purpose of procuring promptly, for Congress, that 
information which was required for the immediate operations of the land 
office. In pursuance of this idea, the 2d section directs that all the proceed- 
ings of the commissioners, the claims admitted, with those rejected, and the 
reason of their admission and rejection, be recorded in a well bound book, 
and forwarded to the Secretary of the Treasury, to be submitted to Con- 
gress. To this desire for immediate information we must ascribe the short 
duration of the board. Their session for East Florida was to terminate on 
the last of June in the succeeding year; but any claim not filed previous to 
the 31st of May in that year, to be void, and of none eflfect. 

These provisions show the solicitude of Congress to obtain, with the ut- 
most celerity, that information which ought to be preliminary to the sale 
of the public lands. The provision that claims not filed with the commis- 
sioners previous to the 30th of June, 1S23, should be void, can mean only 
that they should be held so by the commissioners, and not allowed by 
them. Their power should not extend to claims filed afterwards. It is 
impossible to suppose that Congress intended to forfeit real titles not ex- 
hibited to their commissioners within so short a period. 



No. 2. 

Extract from the opinion of the Supreme Court in the case of Arredondo. 
"It became, then, all important to ascertain what was granted by what 
was excepted. The King of Spain was the grantor, the treaty was his deed; 
the exception was made by him, and its nature and effect depended on his 
intention, expressed by his words in reference to the thing granted, and the 
thing refused, and excepted in and by the grant. The Spanish version was 
in his words, and expressed his intention; and, though the American ver- 
sion showed the intention of this government to be different, we cannot 
adopt it as the rule by which to decide what was granted, what excepted, 
and what reserved: the rules of law are too clear to be mistaken, and too 
imperative to be disregarded by this court. We must be governed by 
the clearly expressed and manifest intention of \\\^ grantor, and not the 
granlee in private, a fortiori, in public grants. That we might not be 
mistaken in the intention or in tlie true meaning of Spanish words, two 
dictionaries were consulted, one of them printed in Madrid; and two trans 
lations were made of the 8th article, each by competent judges of Spanish, 
and both agreeing with each other, and the translation of each agreeing 
with the definition of the dictionaries. ' Quedaran,' in Spanish, correctly 
translated, means * shall remain:' the verb ^ quedar,' in French, ^resterf 
Latin, < manere,^ ^ remaneref and English ' rem,ain,^ in the present tense. 
In the English original the words are < shall be,' words in the future. The 



,17 [ 56 ] 

ilifference is all important as (o all Spanish grants. If the words of the treaty 
were, that all the grants of land 'shall remain confirmed,' then the United 
States, by accepting the cession, could assert no claim to these lands thus* 
expressly excepted. The proprietors could bring suits to recover theni 
without any action of Congress, and any question arising would be purely a 
judicial one. ' Shall be ratified,' makes it necessary that there should be 
a lavv ratifying them, or authorizing a suit to be brought; otherwise the 
question would be a political one, not cognizable by this court, as was decided 
in Foster and Elani vs. rselson. 

"But, aside from this consideration, we find the words used in the Spanish 
sense as to the grants made after the 24th January, 1818, which arc, by the 
same article in English, < hereby declared and agreed to be null and void.' 
The ratification is in Spanish and English. The Spanish words in the 
Spanish version are, ^ quedadd' and ^quedun,^ In reference to the annulled 
grants; the English are, ' have remained,^ * do remain.'' The principles 
of justice, and the rules of both law and equity, are too obvious not to 
require that, in deciding on the effect and legal operation of this article of 
the treaty by the declared and manifested intention to the King, the meaning 
of Spanish words should be the same in confirming as in annulling grants. 
A regard to the honor and justice of a great republic alike forbid the impu- 
tation of a desire that its legislation should be so construed, and its laws so 
administered, that the same word should refer to the future as to confirming, 
and to the present in annulling grants, in the same article of the s.ime 
treaty. 

'♦ For these reasons, and in this connexion, we consider that the grants 
were confirm.cd and annulled, respectively, simultaneously with the ratifi- 
cation and confirmation of the treaty; and that, when the territory was ceded, 
the United States had no right in any of the lands embraced in the confirmed 
grants." 



No. 3. 
Foreign Office, Department op Archives, 

Taris, October 11, 1833. 
Sir: I have the honor to enclose to you the documents which Mr. Mig- 
net had caused to be prepared for you before his departure; and I shall 
feel obliged by your acknowledg^ing their receipt. 
I have the honor to be. 

Sir, your obedient humble servant, 

CTE. DE HAUTERIVE. 
To Hon. Joseph M. White. 



Informalion relative to the limits of Louisiana, on the borders of the 
Floridas, communicated to Mr. White, member of the House of Re- 
presentatives of the United States. 
At the peace of the 3d November, 17G2, between France and England, 

France ceded by the 6th article of the preliminary treaty of the same day, 

ratified by the three powers, of the 12th, 13th, and 14th of the same month, 

part of Louisiana to England. 
3 



[ 56 ] i« 

This article is expressed thus: 

" In order to establish the peace on a solid and durable foundation, and 
to prevent any pretext of dispute respecting the limits of the French and 
British territories on the continent of Anierica, it is agreed, that in future 
the boundary between the possessions of his most Christian Majesty and 
those of his Britannic Majesty in this part of the world shall be irrevocably 
fixed, by a line drawn in the middle of the river Mississippi, from its source, 
unto the river Iberville, and thence by a line along the middle of that river, 
and of the lakes Maurepas and Ponchartrain, to the sea; and for this pur- 
pose his most Christian Majesty cedes and gurantces the cession to his Bri- 
tannic Majesty of the river and port of Mobile, as well as all which his said 
Christian Majesty does or may possess on the left of the river Mississippi, 
with the exception of the city of New Orleans, and of the island on 
which it is situated, which shall still appertain to France; and it is clearly 
understood and agreed, that the navigation of the river Mississippi shall be 
equally free to the subjects of his Britannic Majesty as to those of France, 
both as respects the total breadth and length of the said river, from its source 
to the sea, and especially that part which is between the island of New Or- 
leans and the right bank of the river, as well as the entrance and exit by its 
mouth." 

This article was confirmed by the 7th article of the definitive treaty of 
the 10th February, 1763, signed at Paris by the plenipotentiaries of the 
three powers, and lo which Portugal acceded. 

On the same day on which the preliminary treaty of the 3d November, 
1762, was concluded, France ceded to Spain, by a secret act of cession, ^at 
part of Louisiana which she still possessed: as follows is the tenor of this 
act of cession: 

•' His Christian Majesty, being firmly resolved to strengthen and perpe- 
tuate the bonfls'of intimate friendship whicli unite him to the Catholic King, 
his cousin, intends to act conformably in all and every respect with his Ca- 
iholic Majesty, in a perfect uniformity of principles, as to the renown of 
each of their houses, and the reciprocal interest of their monarchies. 

" With this view, his most Christian Majesty, truly sensible of the sacri- 
fices which his most Catholic Majesty has generously made to assist him in 
establishing peace, wishes, on this occasion, to give him proof of the lively 
interest which he takes in meeting his views and rendering service to his 
crown. 

" And to this efiect his most Christian Majesty has authorized the Duke 
of Choiseul, his minister, to deliver in the most authentic form to the Mar- 
quis of Grimaldi, ambassador extraordinary of his Catholic Majesty, an act, 
by which his most Christian Majesty yields and cedes all property, totally, 
simply, and without any exception, in all the coimtry known by the name 
of Louisiana, as well as New Orleans, and the island in which it is situated, 
to his Catholic Majesty and his successors in perpetuity. 

<'But the Marquis of Grimaldi, not being sufficiently exactly jnfi>rmed of 
the intentions of his Catholic Majesty, does not feel himself authorized to 
accept the said cession otherwise than conditionally and sub ape rati, 
until the arrival of the orders of the king, his master, which, if they are con- 
formable with the desires of his most Christian Majesty, as he hopes they may 
be, will be immediately followed by the formal and authentic act of cession 
in question, in which will be mentioned the suitable mode and time for the 
evacuation of Louisiana and New Orleans by the subjects of his most 



19 [ 56 ] 

Christian Majesty, and for tlie occupation of the said country and city by 
the subjects of his most Catholic Majesty. 

<' In faith whereof, we, the respective ministers, have signed the present 
preliminary act, and affixed to it the seal of our arms. 

Given at Fontainbleau, November Sd, 1762. 

[l. s.] le dug DE CHOISEUL. 

, [L. 8.] LE MARQUIS OF GKIMALDL 

The King of Spain accepted this cession by an act of the 13th Novem- 
ber, of the same year, but the delivery was delayed until the 21st April, 
1764. 

After that period, Louisiana, as possessed by France before 1762, became 
divided into two parts. The one which was ceded to England, and which 
extended to the east from the line of the Mississippi, of the river Iberville, , 
and of the !akes Maurepas and Pontchartrain to Rio Perdido, formed West- H 
ern Flofida; that only which was ceded to Spain preserved the name of 
Louisiana. 

In the war of 1779 Spain conquered Western Florida of England, which 
power ceded it to her by the 5th article of the Treaty of Versailles of the 3d 
September, 1783, abandoning also to her East Florida. 

At the close of this treaty, Spain possessed both parts of ancient Louisi- 
ana; the one to the west of the line of the Mississippi, of the river of Iber- 
ville, of the lakes Maurepas and Pontchartrain, from the cession of France, 
the (fther to the east of that line from the part of England; the first in virtue 
of the act of cession of the 3d November, 1762, the second in virtue of the 
treaty of September 3d, 1783. 

Such was the state of things in Vendimaire, an. 9, (September 1800,) at 
which time, when Spain ceded back Louisiana to France, the act of retro- , 
cession was preceded by protracted negotiations. From the year 4 (1796) 
the ambassador of the French Republic at Madrid, citizen Perignon, was 
instructed to sound the Spanish Government on this subject. 

That Government appeared to enter into the views of France by seeking 
an increase of territory in Italy for the Duke of Parma. The price of this 
aggrandisement was to be the cession of Louisiana and Western Florida. 
The minister of foreign affairs, Delacroix, considered the negotiation suf- 
ficiently advanced in the 14th Messidor, (5th year Fr. Indep.) to write to 
General Bonaparte, that the Directoriat had sent full powers to citizen 
Perignon to conclude a treaty with the Spanish Government. " This treaty, 
he said, ought to have as basis the cession of Louisiana and of West Florida 
lo the republic, upon the supposition that events permit the French Go- 
vernment to procure for the Duke of Parma an augmentation of territory, 
such as Romagna or any other part." 

But this project did not succeed. Subsequently, in the year 8, General 
Berthier was constituted envoy extraordinary to Madrid, to resume the 
same negotiation. 

In exchange for the aggrandizement of territory for the Infanta, Duke of 
Parma, he demanded, according to the express instructions of the Consular 
Government, the cession of Louisiana and the two Florida?. But to these 
propositions he did not find the Spanish Government disposed. 

" The answer of the King (he said in his despatches of the 25th 
Fructidor, an. 8,) to the minister of foreign affairs of France was, that he 
would perform the promise which he had given for the retrocession of 
Louisiaaa, as it had ho^n ceded by the (U'eaty of 1763; that he would never 



[ 56 ] 20 

consent to cede the Floridas, and that he was surprised that, after having 
yielded that which was so long solicited, new demands should be made upon 
hiin." The endeavors of the French Government to obtain the Floridas 
were fruitless, and it accepted the cession of Louisiana alone, as proposed 
by the Spanish Government. 

This was the basis of the treaty of the 9th Vendimaire, an. 9, (1st Oc- 
tober, ISOO). Article 3 of this treaty, relative to Louisiana, was conceived in 
these terms: " His most Catholic Majesty promises and engages, on his part, 
to retrocede to the French Republic, six months after the full and entire ex- 
ecution of the conditions and stipulations before mentioned, relative to his 
Royal Highness the Duke of Parma, the colony or province of Louisiana, 
with the same extent which it had when France possessed it, and such as it 
ought to be, according to the treaties entered into subsequently between 
Spain and other Slates." 

The retrocession of Louisiana having been made in time of war, and Ge- 
neral Bcrthier having written to his Government on the 25th Fructidor, 
an. S, at the time of the negotiation, that the Spanish Minister, Mr. Urquejo, 
had allowed him to understand that, at a general peace, the King might 
cede half of (Vest Florida, situated hetiueen the left ba7ik of the Missis- 
sippi and the river Mobile. General Beurnonville was commissioned to 
this new negotiation after the peace of Amiens, As follows were the 
instructions given to this effect in Vendimaire, an. 11: "The most im* 
jiortant affair with which you will occupy yourself is to facilitate this last 
delivery, which ought to take place before the end of the season, by obtain- 
ing from the Spanish Government, that it give to the Governor of Louisiana, 
if not already done, specific orders to deliver it to the captain general which 

the Consul sends there The retrocession made by Spain 

onl_y extends from the east to the Mississippi; but the Secretary of State, 
M. Urquejo, had given hopes to General Bertrand, charge of this negotia- 
tion, and who insisted on the cession of one of the Floridas, that, at the 
general peace, he did not doubt that the king would consent to cede all 
that part of the Floridas which extends to Mobile, if the Premier Consul 
asked for it. 

" The difficulties which Spain afterwards threw in the way of completing 
the cession of Louisiana caused the French Government to think, hitherto, 
that the moment was not yet arrived to ask an extension of territory; but 
peace has placed France in such a favorable position, that it does not seem 
necessary to adjourn any longer the necessary steps to obtain the aggran- 
dizement with which the minister of the King of Spain flattered the French 
charge d' affaires. The part of Florida which you have to lay claim to, be- 
longed to France before the peace of 1763. It is evident she wishes to 
reacquire this former possession, where there are, doubtless, a great num- 
ber of French families." 

General Beurnonville received full powers to negotiate the exchange of 
the tvvo Floridas in return for the duchy of Parma, which was to be ceded 
by France to his Catholic Majesty, and to be added to the kingdom of Etru- 
ria. He even took with him a plyn of a treaty, composed the 26th Vendimaire 
by the Premier Consul, and of which the following were the dispositions 
relative to this exchange: 

" AuT. 1. The duchy of Parma, acquired by France by the treaty of 
Aranjuez of the 3d Ventose, an. 9, (21st March, ISOl,) are ceded to his 
Catholic Majesty, to be reunited to the kingdom of Etruria. 



♦ 21 [ 56 ] 

"Art. 2. The middle of the Po, from th^ northeast extremity of t!ie 
department of Marengo to the confluence of the Lenza, and the middle of 
this iatter river, from its source to its moulh, shall be the boundaries 
between the Italian Republic and the territory ceded by the preceding ar- 
ticle. Their western limit shall he rectified in the most suitable manner to 
protect the respective frontiers, and to insure the efficacy of the custom- 
houses. 

<' Art. 3. The duchy and dependencies of Parma shall unreservedly fol- 
low the fate of ihe kingdom of Elruria, of which they become an integral 
part. They cannot be separated from it to become settled on any branch, 
of the reigning family; and Spain will exercise in the same manner and in 
the same circumstances, the rights of property and of eventual succession 
which are guaranteed to it in the kingdom of Etruria by the 7th article of 
the treaty of Aranjuez, heretofore mentioned. 

'* Art, 4. Spain, in compensation for the advantages guaranteed to her by 
the present treaty, relrocedes to France the river and port of Mobile, and 
the territory which belonged to it before 1763, to the west of that river only, 
Irom the most northern point of tho thirty-first degree of north latitude to 
the river of Iberville and the gulf of Mexico. Further, she cedes to France 
the other part of West Florida and all East Florida, with the rivers, lakes, 
ports, bays, isles, and straights, dependent on each several Territory, and 
extending to the north unto the line of demarcation traced in article 2 of the 
treaty of friendship, of limits, and of navigation, concluded the 27th October, 
1795, between his Catholic Majesty and the United States of America." 

Conformably to his instructions. General Beurnonville negotiated during 
several months for the exchange of the Florida,? for the duchy of Parma; 
but this new negotiation did not ])roduce any result. Spain kept the Flo- 
ridas, and the impending rupture of the treaty of Amiens induced tlie 
French Government to transfer Louisiana to the United States. This ces- 
sion was effected by the treaty of tiie 30th April, 1803. By the 1st article 
of this treaty France ceded to the United States the Territory of Louisiana, : 
as it was received of S])ain in ISOO. ** As it is said in this article, that by 
the article 3 of the treaty concluded at S.\ Ildefonso the 9 Vendimaire, 
an. 9, (1st Oct. 1800,) between the Premier Consul of the French Repub- 
lic and his Catholic Majesty, as follows, was agreed on: 

'< His Catholic Majesty promises and engages, on his part, to retrocede to 
the French Republic, six months after the full and entire execution of the 
conditions and stipulations before mentioned, relative to his Royal Highness 
the Duke of Parma, the colony or province of Louisiana, with the same ex- 
tent which it has at present under the Spanish dominion, and which it had 
when France possessed it, and as it ought to be, according to the treaties 
passed subsequently between Spain and other powers. 

> And as, in consequence of the said treaty, and especially of the said 
article 3, the French Republic has an incontestible title to the domain, and 
possession of the said territory, the Pi'cmier Consul of the French Re- 
public, wishing to give an especial mark of his friendship to the said United 
States, cedes to them, in the name of the French Republic, for ever, the full 
sovereignty of the said territory, with all its rights and appurtenances, as 
and in the .same manner as they were acquired by the French Republic, in 
virtue of the forfgoing treaty concluded with his Catholic Majesty. (Trans- 
lated from the original Englisli by Martens, Supplement, tome 3, page 460.) 

The territory acquired by the United States shall not exceed the left 
bank of the Mississippi, and does not comprehend Western Florida. 



[ 56 ] 92 , 

In fact, France having only acquired from Spain, by the treaty of retroces- 
sion of 1800, that part of ancient Louisiana which she ceded to her by the 
secret act of 17(i2, could only cede to the United States in 1803 that which 
she had received in 1800. 

If Western Florida, or that part of ancient Louisiana which extends from 
the left bank of the Mississippi to Rio Perdido, had been also ceded 
to France by Spain in ISOO, the treaty of St. Ildefonso would have men- 
tioned it, because France did expressly claim it in the negotiations preced- 
ing this treaty. 

The French Government did not consider that it acquired more than the 
Spanish Government considered that it ceded, because, two years after the 
cession of Louisiana, it negotiated for the exchange of the Floridas for the 
duchy of Parma. It was therefore Louisiana, with the borders she had 
after 1762, which was ceded by France to Spain in 1800, and transferred by 
France to the United States in 1803. 

The Federal Government itself considered this question in the same point 
of view; it did separate Western Florida from Louisiana, and it has recog- 
nised the rights of Spain to it; as follows are several proofs of this: 

1st. In 1795, by article 2 of the treaty of the 27th October, between the 
United States and Spain, the Federal Government acknowledged that the 
limits of Western Florida began at the Mississippi, and did not mix it up 
with Louisiana. 

2d. The ^Ith Ventose, an. 1 1, more than two years after the retrocession of 
Louisiana to France, and some months before its acquisition by the United 
States, Mr. Livingston, their minister plenipotentiary at Paris, maintained, 
in a note addressed to the Premier Consul, this distinction between West 
Florida and Louisiana, and appeared persuaded that Louisiana alone had been 
ceded to France. "If the oificers, said he, empowered to take possession, 
have not express orders to respect the rights of navigation and of entrepot, 
which the United States claim, I must particularly solicit a treaty, which, 
in acknowledging the rights of the United States, shall explain the condi- 
tions on which Spain lias ceded Louisiana to France:" if to all this, citizen 
consul, you would add voluntarily, and as a mark of your consideration, that 
in the case of the cession of the Floridas to France, the citizens of the 
United States shall enjoy the free passage of the rivers Mobile and Pensa- 
cola, with the right of entrepot at their mouths, this act, useful to the 
commerce of France, would be gratefully acknowledged by the Ameri- 
cans, and would much strengthen the bonds of friendship between the two 
allied nations. 

3d. The 30th Floreal, an. 11, (19th May, 1803,) twenty days after the 
treaty of cession of Louisiana to the United States, Mr. Monroe, one of the 
plenipotentiaries of the Federal Government, and whose signature was affixed 
to the treaty, was so far from believing that ancient Louisiana, comprising 
actual Louisiana and West Florida, had been acquired by the United States, 
that he requested the good offices of the French Government with the 
Spanish Goyernment, to negotiate the acquisition of the Floridas. "Citi- 
zen minister," (he addressed the Minister of Foreign Affairs in France) 
"as some months vvill elapse before we can receive the decision and com- 
mands df our Government respecting the treaty and conventions which we 
have had the honor to conclude with Mr. Marbois, under your ministry, I 
consider it my duty to pursue, in the interval, the remaining objects of my 
mission, which are now to be arranged v/ith his Catholic Majesty the King 



Sa [ 56 ] 

of Spain: with that view I propose to set out, as soon o? circumstances will 
permit, to Madrid, which I flatter myself wili be practicable in the course 
of the next week. In the happy conclusion of our negotiation with your 
Government, a sentiment which I am persuaded will be cherished by both 
nations of the result, Mr. Marbois promised, on the part of the First Consul, 
his friendly intercession and support of our negotiation with his majesty 
for the Floridas. Permit me to invite your attention to that subject, and to 
request that you will be so obliging as to furnish me such aid, either by in- 
structions to your ambassador at the Court of Madrid, or in such other mode 
as may be deemed most suitable to the character of the powers interested, 
be best calculated to promote success in the object desired, and to manifest 
the very friendh disposition of the First Consul to the United States, of 
which I entertain the most perfect confidence, I beg you, citizen minister, 
to acceot the assurance of my high consideration and esteem." 

JAMES MONROE. 

4th. Lastly, the 22d Feb., 1829, the Federal Government acknowledged 
the rights of Spain to West Florida, by accepting the two Floridas from the 
Spanish Government, by article 2 of the treaty signed at Washington, be- 
tween the King of Spain and the United States. ''His Catholic Majesty,'' 
says this article, "cedes to the United States, in full property and sove- 
reignty, all the territories which belong to him, situated to the eastward of 
the Mississippi, known by the name of East and West Florida." 

It is true that in the interval which elapsed between the two treaties of 
1S03 and 1819, the United States laid claim to West Florida in virtue of the 
treat)'' of 1803. But France, whose testimony was often appealed to by the 
Federal Government and the Spanish Government, on this question, ac- 
knowledged always the rights of Spain, and condemned the claims of the 
United States. As follows were the expressions of the Minister of Foreign 
Affairs of the Imperial Government respecting the interpretation of the 
treaty of 1S03, in the instructions given the 1st Germinal an. 13 (1st April, 
1805,) to Mr. Desfoyes, commissioner of commercial relations, at l^evf 
Orleans. "Louisiana was ceded to the Americans as France received it 
from Spain; the rights of the new possessor are the same as those ive ac- 
quired, and his Imperial Majesty, in declaring, conformably to the treaty, 
what was its extent and the bounds of his pretensions, thereby declares the 
extent of the pretensions the Americans have a right to elevate. The United 
States claim to have acquired with Louisiana a part of the Floridas, but this 
claim is not expressed in any treaty, and is contrary to all those which have 
been concluded. France, who ceded lo Spain in 1763 only the territory 
situated to the west of the Mississippi and of the river Iberville, has only 
obtained from Spain in Vendemaire, an. 9, a retrocession, the extent of which 
is necessarily measured or bounded by the cession which she made. She 
did not cede in an. 11 any other territory to the United States: she did 
not acknowledge of the claims which they laid to the possession of part 
of the Floridas in virtue of the same treaty. His Imperial Majesty having au- 
thorized me to make this formal declaration to the minister plenipotentiaries 
of the Federal Government, it is in this sense that I have continually express- 
ed myself to them, whether verbally or in my official notes. The court 
of Madrid has received the same declarations from his Imperial Majesty. 
You may therefore, sir, express yourself in the same sense on any occa- 
sion on which you may be consulted in the discussions of the United States 
and Spain, relative to the eastern limits of Louisiana." 



[ 56 ] 24 

The French Government expressed, continually, the same opinion, during 
the discussions between the United States and Spain, relative to the posses- 
sion of Florida. 

TJie aforementioned documents prove as follows; That in 1762, Louisiana 
was divided into two parts; the one situated on the east of the Mississippi 
was ceded to England, and became Western Florida; the- other, situated on 
ihe west of the Mississippi, was ceded to Spain, and alone preserved the 
name of Louisiana. 

That in 1800 Spain, in retroceding Louisiana to France, only gave up 
new Louisiana, limited by the left bank of the Mississippi, and not ancient 
Louisiana, extending to Rio Perdido, because she would not alienate to her 
West Florida, which comprehended that part of ancient Louisiana. 

That in 1802 France, after having exchanged with Spain the kingdom 
of Etruria for Louisiana, proposed to exchange the duchy of Parma for 
Eastern and Western Floridas; but this negotiation proved fruitless. 

'I'hat in 1803 France transferred to the United States that which she had 
received of Spain, that is, Louisiana only. 

That in 1803 the (Government of the United States did not consider that 
it acquired West Florida by acquiring Louisiana; for, immediately after the 
treaty ofthe 10 Floreal, an. 11, she desired to enter into a negotiation with 
Spain respecting the Floridas. 

That in 1819 it recognised the rights of the Spanish Government to West 
Florida, by receiving it of lier by a treaty. 

That, therefore, whether according to the terms of treaties, or according 
to the uniform interpretation which has been given them, the limits of Loui- 
siana, which extended before 1762 to Rio Perdido, have never extended, 
since that period, beyond the left bank of the Mississippi, and have been 
constantly formed by the line of this river, of the river of Iberville, ofthe 
lakes Maurepas and Pontchartrain, on the side ofthe Floridas. 

§TetF^ti^§ Given at Paiis, the 20th August, 1833, according to the ori- 
<^l'rencli Fo-§ ginal documents preserved in the Archives of Foreign Af- 
Sieisfn offices lairs of France; and the foregoing extracts are hereby certified 
to be accurate. 
For and by the authorization ofthe Minister, the Counsellor of State, Di- 
rector of the Archives and Chancelerey. 

(Signed) MIGNET. 

The above signature accredited by the French minister in due form. 



No. 4. 



Prernnxnary and secret Treaty between the French Republic and his 
Catholic Majesty (he King of Spain, relating to the aggrandizement 
of his Royal Highness the Infant Duke of Parma, in Raly, and to 
the recession of Louisiana. 

Mis Catholic Majesty having always manifested the most anxious desire 
to procure for his Royal Highness the Duke of Parma, an aggrandizement 
whicli might place him on a fooling corresponding with his dignity; and the 
French Republic having long since given to his Catholic Majesty the King 
of Spain to understand the desire which they feel to recover possession o 



25 C 56 ] 

the Colony of Louisiana, both Governments having interchanged their views 
upon these two subjects of common interest, and circumstances permitting 
them to enter into engagements in this particular which, as far as it depends 
on them, may assure reciprocal satisfaction, have authorized for this purpose, 
that is to say, the French Republic, the citizen Alexander Berthier, general- 
in-chief; and his Catholic Majesty, Don Mariano Luis de Urquijo, chevalier 
of the order of Charles IIL and of St. John of Jerusalem, counsellor of 
state, his envoy extraordinary and plenipotentiary, near the Batavian Re- 
publiv', and his provisional first secretary of slate; who, after having ex- 
changed their powers, have agreed, saving the ratification, upon the follow- 
ing articles: 

Article 1. The French Republic engages to procure for his Royal High- 
ness the Infant Duke of Parma an augmentation of territory, which shall 
raise the population of his estates to one million of inhabitants, with the title 
of king, and all the rights annexed to the royal dignity; and to this effect the 
French Republic engages to obtain the consent of his majesty the emperor 
and king, and of the other states interested, so that his Royal Highness the 
Infant Duke of Parma' may, without opposition, enter into possession of said 
territories at the time of the confirmation of the peace between the French 
Republic and his Imperial Majesty. 

Article 2. The augmentation to be given to his Royal Highness the 
Duke of Parma may consist of Tuscan}', in ca^e the present negotiations of 
the French Government with his Imperial Majesty shall permit them to 
dispose of that country, or of the three Roman ecclesiastical provinces, or 
any other continental provinces of Italy, that may form a rounded estate. 

Article 3. His Catholic Majesty promises and engages on his part to 
recede to the French Republic, six months after the full and entire execution 
of the conditions and stipulations herein expressed, relative to His Royal 
Highness the Duke of Parma, the colony or province of Louisiana, ivilh the 
same extent I hut it now has in the lands of Spain, and had ivhile in the 
possession of France^ and such as it might to be in conformity ivith the 
treaties subsequently concluded between Spain and other States. 

Article 4. His Catholic Majesty will give the necessary orders for the 
occupation of Louisiana by France the moment the estates designed for 
his aggrandizement shall be placed in the hands of His Royal Highness the 
Duke of Parma. The French may, according to its convenience, defer the 
taking possession; and when this is to be done, the States directly or indirectly 
interested shall agree upon the ulterior conditions which their common inte- 
rests, and that of their inhabitants, may demand. 

Article 5. His Catholic Majesty engages to deliver to the French Repub- 
lic, in the ports of Spain in Europe, one mouth after the execution of the stipu- 
lation with regard to the Duke of Parma, six ships of war, in good condition, 
<^f seventy-four guns, armed and equipped, and in a slate to receive the 
Frencii crews and supplies. 

Article 6. The stipulations of the present treaty having no prejudicial 
object, but on the contrary preserving untouched the rights of every one, 
it is not to be presumed they can excite the suspicions of any power. But 
if the contrary should happen, and the result of their execution should be 
that the two estates are attacked or threatened, both powers engage to make 
common cause, as well to repel aggression, as also to take those conciliatory 
measures proper to maintain peace with all their neighbors. 
4 



t 56 ] 26 

Article 7. The obligations contained in the present treaty in nothing 
annul those which are expressed in the treaty of alliance signed at St. Ilde- 
fonso, on the 2d Fructidor, year 4 (18th August, 1796); on the contrary, 
they unite with new ties the interests of the two powers, and confirm the 
stipulations of the treaty of alliance in all the cases to which they can be ap- 
plied. 

Articles. The ratifications of the present preliminary articles shall 
be completed and exchanged in the period of one month, or sooner if possi- 
ble, counting from the date of the signing of the present treaty. 

In faith of which, we, the undersigned ministers plenipotentiary of the 
French Republic and of His Catholic Majesty, by virtue of our respective 
powers, have signed the present preliminary articles, and have affixed our seals. 

Done at St. Ildefonso, the 9th Vendimaire, 9th year of the French Re- 
public, (1st October, 1800.) 

(Signed) ALEXANDER BERTHIER, 

(Signed) MARIANO LUIS DE URQUIJO. 



No. 5. 

Mr Talleyrarid to Mr. Monroe: dated 

Paris, December 21, 1804. 

Sir: I had the honor in Brumaire last, to inform Mr. Livingston that I 
would submit to the inspection of his Imperial Majesty the letters which he 
addressed to me, relative to the motij'es of Mr. Monroe's journey to Spain, 
and some discussions between the Court of Madrid and the United States. 

Among the observations made on this subject by Messrs. Livingston and 
Monroe, his Imperial Majesty has been obliged to give particular attention 
to those bearing on the discussions, of which the object is peculiarl}'- 
interesting to the French Government, He has perceived that he could not 
be a stranger to the examination of these discussions, since they grew out 
of the treaty by which France has ceded Louisiana to the United States; 
and his majesty has thought that an explanation, made with that fidelity 
which characterizes him, on the eastern boundaries of the ceded territory, 
would put an end to the differences to which the cession has given rise. 

France, in giving up Louisiana to the United States, transferred to them 
all the right over that colony which she had acquired from Spain. She 
could not, nor did she wish to cede any other; and that no room might be 
left for doubt in this respect, she repeated, in her treaty of 30th April, 1803, 
the literal expressions of the treaty of St. Ildefonso, by which she had 
acquired that colony two years before. 

Now, it was stipulated in her treaty of the year 1801, that the acquisi- 
tion of Louisiana by France was a relrocesHion; that is to say, that Spain 
restored to France what she had received from her in 1762. At that 
period, she had received the territory bounded on the east by the Missis- 
sippi, the river Iberville, the lakes Maurapas and Pontchartrain, the same 
day France ceded to England, by the preliminaries of peace, all the terri- 
tory to the eastward. Of this Spain had received no part, and could there- 
fore give back none to France. 

All the territory lying to the eastward of the Mississippi and the river 
Iberville, and south of the thirty-second degree of north latitude, bears the 



27 C 56 ] 

name of Florida. It has been constantly designated in that way during the 
lime that Spain held if; it bears the same name in the treaty of limits 
between Spain and the United States, and, in different notes of Mr. 
Livingston, of a later date than the treaty of retrocession, in which the 
name of Louisiana is given to the territory on the west side of the JVIissis- 
sippi, of Florida to that on the east side of it. According to this designation, 
thus consecrated by time, and even prior to the period when Spain began to 
possess the whole territory between the thirty-first degree, the Mississippi, 
and the sea, this country ought, in good faith and justice, to be distin- 
guished from Louisiana. 

Your excellency knows, that before the preliminaries of J762, confirmed 
by the treaty of 17()3, the French possessions situated near the Mississippi 
extended as far from the east of this river, towards the Ohio and the Illinois, 
as in the quarters of the Mobile; and you must think it as unnatural, after 
all the changes of sovereignty which that part of America has undergone, 
to give the name of Louisiana to the district of Mobile as to the territory 
more to the north, on the same bank of the river which formerly belonged 
to France. 

These observations surely will be sufficient to dispel every kind of doubt 
with regard to the retrocession made by Spain to France in the month of 
Vendimaire, year 9. It was under this impression that the French and 
the Spanish plenipotentiaries negotiated; and it was under this impression 
that I have since had occasion to give the necessary explanations when a 
project was formed to take possession of it. I have laid before his Imperial 
Majesty the negotiations of Madrid, which preceded the treaty of ISOl; 
and his majesty is convinced that, during the whole course of these negotia- 
tions, the Spanish Government has constantly refused to cede any part of 
the Floridas, even from the Mississippi to the Mobile, 

His Imperial Majesty has moreover authorized me to declare to you, 
that at the beginning of the year 11, General Beurnonville was charged to 
open a new negotiation witli Spain for the acquisition of the Floridas. 
This project, which has not been followed by any treaty, is an evident 
proof that France had not acquired by the treaty retroceding Louisiana the 
country east of the Mississippi. 

The candor of these observations proves to you, sir, how much value his 
majesty attaches to the maintenance of a good understanding between two 
powers, to whom France is united by connexions so intimate and so 
numerous. His majesty, called upon to give explanations on a question 
which interested France, directly persuades himself that they will leave no 
ground of misunderstanding between the United States and Spain; and that 
these two powers, animated as they ought to be by the sentiments of friend-, 
ship, which their vicinity and their position renders so necessary, will be 
able to agree with the same facility on the other subjects of their discussion. 

This result his Imperial Majesty will learn with real interest. He saw 
with pain the United States commence their differences withj Spain in an 
unusual manner, and conduct themselves towards the Floridas by acts of 
violence; which, not being founded in right, could have no other effect but 
to injure its lawful owners. Such an aggression gave the more surprise to 
his majesty, because the United States seemed in this measure to avail 
themselves of their treaty with France as an authority for their proceeding; 
and because he could scarcely reconcile with the just opinion which he 



[ 56 ] 28 

entertains of the wisdom and fidelity of the Federal Government, a course 
of proceeding which nothing can authorize towards a power which has long 
occupied, and still occupies, one of the first ranks in Europe. 

But the Federal Government having entered the path of negotiation, and 
the question which divided the two powers being cleared up, there is reason 
to hope that they will easily agree on the other points; and this his majesty, 
from the sincere interest which he feels for the equal prosperity of the 
two nations, ardently desires. 

Accept, sir, &c., 

CH. MAN. TALLEYRAND. 



No. 6. 



Extract from the royal order of the King of Spain for the delivery of 
the Province of Louisiana to the French Rejiuhlic, dated Barcelona, 
October 15, 1802. 

Don Carlos, by the grace of God King of Castile, Leon, Aragon, of the 
Two'Siciiies, of Jerusalem, Navarre, Grenada, Toledo, Valencia, Gallicia, 
Majorca, Minorca, Seville, Sardinia, Cordova, Corsica, Murcia, Jaen, of 
the Algarves, Algcsiras, Gibraltar, of the Canary Islands, of the East and 
West Indies, of tiie Islands and Continent of the Ocean, Archduke of 
Austria, Duke of Burgundy, of Brabant and Milan, Count of Apsburg, 
Flanders, Tyrol and Barcelona; Lord of Biscay and Molina, &c. 

Whereas, I have judged it proper to retrocede to the French Republic the 
colony and province of Louisiana, I command you, as soon as these pre- 
sents are exhibited to you by General Victor, or any other ofiicer duly 
authorized by said republic to receive the same, to put him in possession of 
the colony of Louisiana and its dependencies, together with the city and 
island of New Orleans, with the same limits it has at present, which it had 
whilst it belonged to France, and at the time she ceded it to my royai 
crown, and such as it ought to be found after the treaties successfully con- 
cluded between my States and those of other powers, in order that hence- 
forth the same may belong to said republic, and that she may cause it to be 
administered and governed by her own officers and governors, as her own 
possession, without any exception wiiatever. 



No. 7. 

Jict of Delivery of the Trovince of Louisiana by Spain to France. 

The undersigned, citizen Pierre Clement Laussat, colonial prefect, 
commissioner on the part of the French Government, to receive possession 
in the name of the French Republic, of the colony or province of Louisiana, 
from the hands of the officers and other agents of his Catholic Majesty, 
agreeably to the full powers which he has received, in ibe name of the 
French people, from citizen Bonaparte, First Consul, under date of the 
17th Prairial, year 11, (Gth June, 1S03,) countersigned by Hugues Maret, 
secretary of state, and by his excellency Decres, minister of marine and 
of the colonies, and recently delivered in person to the commissioners of 
his said Catholic Majesty, together with the royal order, dated frcm Barce- 
lona, 15th October, iS02. 



29 [ 56 ] 

And the said commissioners of his Catholic Majesty, Don Manuel de 
Salcedo, brigadier in the king's armies, military and political governor of 
the provinces of Louisiana and West Florida, inspector of the veteran troops 
and militia of said provinces, royal vice patron, subdelegate, judge of the 
superintendence of the post-office department, &c, , and Don Sebastian Calvo 
de la Puerta, Y. O'Farrell, Marquis of Casa Calvo, knight of the order of 
St. James, brigadier in the king's armies, and colonel of the infantry regi- 
ment of the Havana, appointed commissioner of his Catholic Majesty, for 
the delivery of this province to the French Republic, according to the royal 
order of the 18th Feb., 1803: 

Certify by these presents, that,* on this eighth day of Frimaire, in the 
twelfth year of the French Republic, and thirtieth November, 1803, hav- 
ing assembled in the hall of the hotel of the city of New Orleans, accom- 
panied on either part by the chiefs and officers of the armies of land and 
sea, the secular and ecclesiastical cabildo, the administration of finances of the 
king of Spain, the civil administration, and by other distinguished persons 
of their respective nations, said citizen Laussat delivered to the said com- 
missioners of his Catiiolic M:)jcsty the abovementioned full powers from 
citizen Bonaparte, First Consul of the French Republic; and immediately 
after, the said Manuel de Salcedo and the Marquis of Casa Calvo declared 
that, by virtue of, and in conformity to the terms of the order of the king 
of Spain, dated from Barcelona, the 15th October, lfi03, and countersigned 
by Don Pedro Cevallos, first secretary and counsellor of state, they, from 
that moment, did put the said French commissioner, citizen Laussat, in pos- 
session of the colony of Louisiana and its dependencies, as also of the city ; 
and island of New Orleans, with the same extent which they have on this ' 
da}', and which they had while in the hands of France, when she ceded the \ 
same to the royal crown of Spain, and such as they ought to have been 
since the treaties successively concluded between the States of his Catholic 
Majesty and those of other powers, in order that the same may hence- 
forth belong to the French Republic, and be governed and administered by 
its officers or governors, in such manner as will best suit its interests; and 
they have, accordingly, solemnly delivered to him the keys of this place, 
declaring that they absolve from the oath of fidelity to his said majesty, all 
such inhabitants as may choose to continue in the service or dependence of 
the French Republic. 

And to the end that the same may forever hereafter appear by this solemn 
act, the undersigned have signed these presents in the French and Spanish 
languages, have hereto affixed their seals, and caused the same to be coun- 
tersigned by the secretaries of the respective commissions, the day, month, 
and year above written. 

LAUSSAT. 

By the colonial prefect and commissioner on the part of the French Go- 
vernment. 

Daugerot, Secretary to the Commission. 

MANUEL DE SALCEDO. 
EL MARQUEZ DE CASA CALVO. 
Andres Lopez Armisto, 

So del Gobo. y de la Comrri'on. 



[ 56 ] 30 

Below is written: 

Deposited in the archives of the city hall of this commune, New Or' 
leans, the 6th Ariose, year 12 of the French Republic, and 28th December, 
A. D. 1803. 

LAUSSAT. 
By the colonial prefect and commissioner on the part of the French Go- 
vernment. 

DAUGEROT, 
Secretary of the Commission. 



No. 8. 

Proclamation of Spanish Commissioners. 

Don Manuel Salcedo, brigadier in the royal armies, military and political 
Governor of the provinces of Louisiana and West Florida, Inspector of 
the veteran troops and militia of the same, Royal Vice Patron, Substitute 
Judge of the General Superintendence of Post Offices, &c. ; and Don Se- 
bastian Calvo de la Puerta y O'Farrill, Marquis of Casa Calvo, Knight of 
the Order of Santiago, Brigadier in the royal armies, and Colonel of the 
infantry regiment stationed at Havana; Commissioners on the part of his 
Majesty for delivering this province to the French republic. 
We make it known to all the vassals of the king, our master, of all classes 
and conditions whatsoever, that his Majesty has resolved to make a retro- 
cession of the province of Louisiana, for the mutual satisfaction of both 
powers; and continuing to give tiie same proofs of protection and affection 
which the inhabitants of this province have always received, he has thought 
fit to settle, among other things, certain points, which we deem it our duty 
publicly to make known for the particular government and disposition of 
all whom it may concern: 

1. His majesty, in consideration of the obligations imposed by the trea- 
ties, and wishing to avoid the differences which might arise, has been pleased 
to resolve, that the delivery of the colony and island of New Orleans, which 
is to be made to General Victor, or other officer lawfully authorized by 
the Government of the French republic, shall be made in the same manner 
that it was ceded by France to his majesty, by virtue of which the limits of 
both shores of the river St. Louis or Mississippi shall femain as irre- 
vocably fixed by the seventh article of the definitive treaty of peace, con- 
cluded at Paris on the 10th February, 1763; and consequently the settle- 
ments from the river Manshack or Iberville, to the line which divides the 
American territory from the dominions of the king, shall remain in the pos- 
session of Spain, and annexed to West Florida. 



No. 9. 



Extract o^ a tetter from Don Jose Pizarroy to Mr. Erving, Minister 
in Spain, dated Palace, Jiiigust 17, 1817. 

*' Besides this, posterior to the year 1805, the extraordinary event has 
occurred of his Majesty's having been unexpectedly deprived in the year 
1810, during his captivity, of the pacific possession, in which he was, of tha 



31 [ 56 ] 

part of west Florida which is between the river Iberville, the lakes Maure- 
pas, Pontchartrain, and Bourne, on the one side, and the river Perdido on 
the other. When the indisputable property of his majesty in the said ter- 
ritory was demonstrated, it was proved that Spain did not acquire it of 
France in I763j that she received it of England in 1783, by a solemn 
treaty; that it was not and could not be comprehended in the " retrocession 
of Louisiana,*^ made to France in the year 1800; that the Government of 
France *' has declared so officially,^^ and in the most solemn manner, as 
well to Spain as the United States; that the 5th article of the treaty of 1778, 
between France and the United States, opposes itself expressly to the ac^'wf- 
silio?i of France (though she had attempted it) of said territory from 
Spain, in 1800; if^at the royal celuda of his majesty, issued in Barcelona, 
on the 15th of Ootober, 1802, for the delivery of Louisiana, (which royai 
celuda was in the' hands of the French Government before the United 
States thought of acquiring the colony,) did not contemplate the delivery 
of territory east of the Mississippi than that of "the island of Neio Or- 
leans. ^^ 

To these grounds, which have established, and so establish in the clearest 
manner, the property of his majesty in the said territory, may be added those 
of his pacific posses^sion without interruption. The delivery of Louisiana took 
place without the least idea having occurred to the French commissioners who 
received it of his majesty, for the purpose of delivering it to the United States, 
of aspiring to the possession of the territory between the Iberville and the Per- 
dido, Spain continued, in the years following the delivery, exercising over 
it all her authority, and the United States respected this possession; a certain 
custom-house regulation of the United States in the year 1804, which seemed 
to contain some expressions susceptible of an equivocal meaning as to the 
rights of his majesty in the territory of Mobile, were reclaimed against on 
the part of the king, and the United States agreed to give a satisfactory and 
honorable explanation as to the said expressions. Whatever might be then, 
in that slate of things, the pretension of right which might be formed against 
it, it did not appear to conform to the principle universally acknowledged 
to enforce that pretension* hy means of acts, and in truth it was a painful 
duty for the faithful ministers of his majesty, on his return from his cap- 
tivity, to explain to him by what means and circumstances he had been de- 
prived of the peaceful possession of the greater part of West Florida, with- 
out war, or any stipulation which could authorize having preceded it. 

The king, attributing this extraordinary event to the circumstances, also 
extraordinary, of the epoch which had intervened, flattered himself that the 
United Slates would not defer placing things in the state which they were 
in at the time he left his dominions, and the invasion of the peninsula by 
Bonaparte. The glory, and even the interests of the United States migbt 
equally incline them to this restitution; for a recent and costly experience 
has made the world see that there are no acquisitions of territory, however 
extensive, which can compensate the advantages to result from the reputa- 
tion which those governments acquire who regulate their operations by 
principles conservatory of order and justice. 

With these ideas, the king directed his minister at Washington, that be- 
fore he entered into the discussions v/hich had remained pending, he should 

•= Note. — Fta« do hecho is French phraseolog'y, voie defaita. 



[56 ] 



32 



solicit the restoration of affairs in the state in vvhioh they were at the time 
of his absenting himself. This preliminary step appeared correspondent to 
the decorum of his majesty, and the United States could not fail to ac- 
knowledge it to be so; it being very certain that the delicate honor of the 
American Government would not consent,, in a similar case, to enter into 
other negotiations, finding itself inquieted in the pacific possession of even 
one mile of its acknowledged territory, without first soliciting and obtaining 
the due restoration. 

Notwithstanding this, and the answer of the Secretary of State of 19th 
January, 1816, is far from containing the satisfaction and restoration which 
Spain had reason to expect, his majesty, to give unequivocal proofs of his 
moderation, and of his friendly dispositions towards the United States, with- 
out renouncing, as he does in no way renounce, nor will renounce, unless in 
the case of some compromise, the right of property and possession which 
he has in the said territory, has judged fit not to insist on his demand for 
the present, in the hope that this point, though in its nature it ought to be 
preliminary, may enter into the general arrangement with the others; but 
your penetration will acknovvledge readily, that on this essential point, as 
in others, the state of the question is not what it was in the year 1805, new 
occurences of such importance having taken place since that period." 

In the treaty proposed by Don Jo>e Pizarro, in 1817, with the United 
States, the following articles are to be inserted as the basis, viz: 

" 6th. His Catholic Majesty, master of Florida, East or West, in all the 
extension in which he received them from England by the treaty of J 783, 
and which they had in possession of Great Britain before said treaty, will 
be willing, for his part, to cede them, with the same extension, to the 
United States of America, in full property and perpetual sovereignty, pro- 
vided that the United States are equally disposed on iheir part to cede, 
in the same form to his Catholic Majesty, that part of Louisiana which is 
situated to the west of the Mississippi, and is the territory which lies be- 
tween the said river and the well known limit which now separates, and has 
separated Louisiana when France possessed it before the year 1764, and 
even before the death of the King of Spain, Charles II., from the Spanish 
province called Texas; so that, after these reciprocal cessions are verified, 
the course of the river Mississippi, from its source to where it discharges 
into the sea, will be the only limit of the dominions of his Catholic Majesty, 
and those of the United States; and though the king could wish, that in 
the most southern part of said river, where it opens diflferent branches or 
channels before discharging itself into the sea, the separating line might be 
continued through the principal channel which passes by New Orleans; yet 
his majesty, desiring, in all that depends on him, to facilitate the arrange- 
ment, it may be agreed and stipulated, that the dividing line, in the part 
where the Mississippi separates itself and flows into different channels, shall 
be established towards the western part, placing it in the middle of the arm 
or channel called La Fourche, to where it discharges itself into the sea, all 
the delta, or ground alluvion, situated on the east of said channel La Fourche, 
remaining in the power of the United States. 

'•7th. As by the Sth ariicle of the treaty of Utrecht it is declared that 
for the future all cessions, sales, or alienations of the Spanish territory in 

3477-251 
Lot-3B 



33 [ 56 ] 

America, shall be null and of no value, Spain herself remaining without 
powers to make them, and England obliging herself to aid the Spaniards, 
that the limits of their dominions in America should be established and 
maintained as they were before the decease of King Charles II. ; and as 
the part of the Floridas situated on the east of the river Perdido was a 
Spanish possession at the time of the decease of the said King Charles II., 
and, therefore, is comprehended in the said 8th article of the treaty of 
Utrecht, it is not in the power of his Catholic Majesty to effectuate, by 
himself, the cession mentioned in the preceding article, without the previ- 
ous consent and agreement of the power or powers interested in the fulfil- 
ment of the said treaty of Utrecht, for which reason it will be indispensable, 
in case that the United States shall accede to the proposed arrangement, to 
solicit and obtain the said consent of the power or powers interested, and 
the derogation, and for this sole purpose of the said article of the treaty of 
Utrecht, which, in all other respects, shall hereafter remain in full force." 



No. 10. 



Note of General Armstrong, in a pamphlet entitled a "Review of 
Adams's Eulogium, upon James Monroe." 

*'Mr. Adams asserts that much ability was shown in this abortive negotia- 
tion by Mr. Monroe and his colleague Mr. P. Does he forget, or has he 
overlooked the admission to be found in Mr. Monroe's preliminary letter 
to Talleyrand, " that we had bought from France only what France had 
bought from Spain?" By this admission, the question became one, not of 
construction, but of fact. It was no longer what the terms of the treaty of 
St. Ildefonso would warrant us in demanding, but how those terms were un- 
derstood by the parties to that instrument. Spain denied that she had ceded 
West Florida to France, and France denied that she had either sold, or in- 
tended to sell to us, more than she had bought from Spain. Such was the 
Pons Asinorum which stopped the progress of Mr. Monroe and his col- 
league at Madrid. By the way, the construction given to the treaty of St. 
Ildefonso, on which the United States so long and pertinaciously relied, and 
which Mr. Madison's ingenuity made so plausible, was a suggestion of Mr. 
Livingston's, submitted by him to his Government, and adopted by it, but to 
which Mr. M, for some time refused his assent. See Mr. L.'s official cor- 
respondence with Mr. Madison in the spring of 1803." 

















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